Appellate Court Affirms Dev Conviction

Ajay Dev was convicted in 2009 of multiple counts involving the alleged repeated rape of his adopted daughter.  Judge Tim Fall would sentence Mr. Dev to a term of 378 years.  Many in the community, his family and the Vanguard believe that Mr. Dev was innocent of those charges and was wrongfully convicted.

In October, the 3rd District Court of Appeals heard oral arguments in the case.  The Court had until January 17 to issue a ruling, and it put forth a 59-page opinion with four days to spare which upheld the conviction.

“Based on our review of the entire record, we are confident defendant received a fair trial,” the court writes.  “The testimony of a single witness can support a conviction if that testimony is believed by the jury.  Defendant claims the victim lied, but it was the responsibility of the jury to review all the evidence, including the witness testimony, and determine which evidence it found credible and dispositive.”

The court writes, “Our review of the record establishes that defendant’s convictions are supported by substantial evidence.”

Among other things, the court cites: “In addition to the victim’s testimony regarding the sexual offenses, there is evidence of a recorded phone conversation between the victim and defendant in which defendant made statements that he deserved to be put in prison, that he threatened to kill the victim and himself, that the victim’s life would be ruined because she had sex with defendant after she turned 18 and thus had consented, that they met together at a motel, and that nothing would happen because the victim had no proof.”

The court also writes, “There is also evidence regarding pornographic materials found on a laptop and computer tower in defendant’s house,” although the court does not mention he was acquitted on this charge.

Mr. Dev and his attorneys made ten challenges to the evidence claiming violations and errors which the court rejected.

He contends:

(1) the trial court failed in its sua sponte duty to instruct the jury with CALCRIM No. 359 (corpus delicti — independent evidence of a charged crime) in connection with the use of statements he made during the recorded pretext call;

(2) the trial court erred in failing to appoint a certified Nepali interpreter to translate the statements defendant made during the pretext call, and it abused its discretion in permitting the victim to act as an “uncertified interpreter” of those statements;

(3) the trial court erred in instructing the jury with CALCRIM No. 358 because, according to defendant, the instruction directed the jury that all recorded statements made by defendant could be viewed without caution;

(4) the trial court erred in excluding evidence of the victim’s 2005 Nepal record of conviction;

(5) the trial court erred in admitting evidence of adult pornography;

(6) the prosecutor committed misconduct in arguing that a person using a file-sharing website cannot inadvertently or unknowingly obtain child pornography, and it was error to admit People’s exhibits 44-A, 44-B and 44-C (pertaining to files which an expert believed contained child pornography);

(7) the trial court erred in excluding evidence of an e-mail which purportedly showed that defendant was at work when someone accessed child pornography on his home computer;

(8) the prosecutor committed misconduct by commenting on defendant’s failure to testify;

(9) the trial court violated defendant’s constitutional rights by refusing to hold an evidentiary hearing to settle a proposed statement with regard to a missing jury note and whether the jury received certain trial exhibits during deliberations; and

(10) defendant is entitled to a new trial based on the cumulative effect of the asserted errors in this case.

The court concludes the following:

(1) the trial court erred in not instructing with CALCRIM No. 359, but the error was harmless because there is sufficient independent evidence of the crimes;

(2) the trial court was not obligated to appoint a certified Nepali interpreter, and did not prejudicially err in allowing the victim to testify regarding statements made in the pretext call, because there was no witness or party who could not speak or understand English, and it was for the jury to decide witness credibility and resolve conflicts in the evidence;

(3) we disagree with defendant’s characterization of CALCRIM No. 358, and the last sentence of that instruction does not apply to the parties’ dispute about the interpretation of defendant’s recorded pretext call statements;

(4) defendant fails to show that the purported Nepal court records were admissible or subject to judicial notice, and the claims he raises for the first time on appeal are forfeited;

(5) defendant’s claims in connection with the admission of adult pornography are forfeited because he did not make a specific objection on the grounds asserted on appeal in the trial court;

(6) defendant failed to preserve his prosecutorial misconduct claim for review because he did not object at trial to the challenged remarks, and it was not error to admit People’s exhibits 44-A, 44-B and 44-C;

(7) the trial court did not err in excluding the proffered e-mail because defendant failed to establish the foundational requirements for its admissibility;

(8) read in context, there is no reasonable likelihood the jury would have construed the prosecutor’s remarks as a reference to defendant’s failure to testify;

(9) no prejudicial error is demonstrated in the settled statement proceedings; and

(10) reversal is not required because defendant’s appellate claims are forfeited or lack merit.

The Vanguard will have a full analysis of this ruling in the coming days.

Here are three key articles that analyze the case:

Vanguard Analysis of Ajay Dev’s Appeal, Part I

Vanguard Analysis: Ajay Dev’s Appeal, Legal Arguments – Part II

Sunday Commentary: Judicial Error Lies at the Heart of Ajay Dev’s Wrongful Conviction

—David M. Greenwald reporting

About The Author

David Greenwald is the founder, editor, and executive director of the Davis Vanguard. He founded the Vanguard in 2006. David Greenwald moved to Davis in 1996 to attend Graduate School at UC Davis in Political Science. He lives in South Davis with his wife Cecilia Escamilla Greenwald and three children.

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23 Comments

        1. Jaroslaw Waszczuk

          Is not there . I read the Appellant  Opening Brief (AOB) and the  Appellant Reply Brief (ARP) and would like to read the  Prosecutor’s Brief.  Do you know if DA offered a plea agreement for Dev  during the legal  process ?

    1. Jaroslaw Waszczuk

      Fight Against Injustice 

      DV covered the case than  the  DV should have the RB and publish it .  David stated that he has the brief somewhere.

      Did you read the Respondent’s Brief ?

          1. David Greenwald

            I’m too busy chasing my tale at the moment. If I have it, it’s buried and I won’t have a chance to look for it until at least Tuesday.

        1. Jaroslaw Waszczuk

          David

          You no need to chase your tale . Just sent e-mail to defense attorney and he will send you brief by e-mail . He has  brief’s electronic file .  It will  take you a minute .

        2. Jaroslaw Waszczuk

          Howard

          Don’t you like to read how the  People  presented the case on the appeal ?  This is not the pun buddy . This is a journalist’s credibility  and  387 years in prison for guy accused of raping his adopted daughter.  Are you trying to be funny or what is your point Howard ?

  1. Fight Against Injustice

    As far as the ruling, it is so sad that judges used reasons not to overturn the conviction that had already been shown as faulty at the trial.

    For instance,

    1. They talk about pornography (but the jurors found Ajay innocent of the porn charges)

    2. They talk about a meeting at Motel 6 (but the jurors found Ajaynot guilty of the Motel 6 charge)

    3.  They talk about pregnancies (but the jurors found Ajay not guilty of the pregnancy charges)

    There were reasons each of these charges were bogus and that is why the jury did not convict.  You can read about these reasons in the appellate opening brief found at http://www.seekingjusticefortheinnocent.

    It is sad and terrifying that the appellate court did not read deeply or precisely all these issues that were found in the appellant’s brief.

    The judges also stated that the jury didn’t convict based solely on the pretext phone call that was translated by the accuser, but we know from jury blogs that this is exactly what happened.  Unfortunately, the juror blogs cannot be used in a direct appeal.

    We have been told by many lawyers that Ajays’s case would not be reversed at the third district and that it most likely be reversed at the US 9th district.  We were just hopeful that the justice system would work the right way.

    We will keep fighting to fix this wrongful conviction.  We have heard it usually takes 15-20 years to get a conviction overturned.  We will keep working on making sure the evidence of Ajay’s innocence comes to light.

  2. Jaroslaw Waszczuk

    Fight Against Injustice

    I don’t who you are and I don;t care .  I am fine with  what you believe . I asked you whether you had a liberty to read the Respondent’s Brief. David covered the case and I am sure that  he received the copy of the Respondent’s Brief from the Ayaj Dev attorney or from the other sources .  Myself,  I have two pending appeals in the same  Court of Appeal and my life quite affected  by judges decisions  from the lower court than I like to read the full story about Avaj Dev.  The Appellant Opening Brief and the Respondent  Reply Brief in  Dev’s case  sounds like a  Hollywood’s movie script . .  I know where to find the Respondent’s Brief  if David refuse to provide me copy . You no need to instruct me about . I wrote the brief myself in the criminal case for one guy about the police brutality than I know where to go if needed to get the brief .

    I read the Dev’s case Appellant  Opening Brief and the brief’s and view the  brief Introduction as not very good introduction for the Court of Appeal not to mention other parts . This is why I need to read the Respondent’s Brief.  This is  a whole point .

  3. Becky Cox

    There is a reason most wrongly convicted people spend 20+ years behind bars before they are released. Most Appeals are denied, the judges can ONLY use what is in the trial transcript. I read the judges opinion and it it’s pretty scary that the court can affirm the ruling just because the initial defense attorney did not raise an objection or just as bad, did not raise the correct objection. In some of the finding it appeared this was the sole reason for not reversing the lower courts opinion. Courts fault the defendant when the defense attorney was lacking in their defense.

  4. Jaroslaw Waszczuk

    Becky  Cox

    I entirely  agree with with yours opinion .  This particular criminal case is very complex and lengthy  case .  I did not read yet People’s Brief or Respondent’s Brief . However , the other briefs and  the Court of Appeal unpublished opinion could make you sick. . I believe that in this case the  Court of Appeal should grant the new court trail  with new jury and judge  to make sure that no miscarriage of justice took place . I would not jump the conclusion  that Mr. Dev was innocent of those charges and was wrongfully convicted.as DV believes . By reading the court documents I would rather believe that Mr. Dev paid the money to distance relative  and brought the 16 years old  Sapna Deo in  1999  to USA as sex slave for himself. I am not stating  that it is actually true but in the relevant time Nepal was very poor  country and parents were selling massively  their under age daughters as the sex laborer or sex slaves to other countries . 

    Read the 1995 by Human Rights Watch Report ” RAPE FOR PROFIT Trafficking of Nepali Girls and Women to India’s Brothels” https://www.hrw.org/reports/1995/India.htm

     

     

     

    ee

  5. Bill Pursell

    Motivation is a very important thing to consider, but it is also important to note that Ajay Dev was married at the time of adoption, he and his wife were charitable and active participants in the Nepali community in the US, and he and his wife were both interested in pursuing this adoption.

    Your listed motivation would therefore have to include his wife’s complicity (this, of course, would be very unusual and unwarranted defamation of character) or a complete ignorance of “Ajay’s plan”. That complete ignorance would also have to extend to allegedly hundreds of instances of rape, many allegedly occurring in bed with her present. You can see how flimsy this proposed motivation becomes.

    At the time, and still today, Nepali family members go abroad, or are forced abroad, to work in wealthier countries and send money home. This is common for many immigrants from poorer nations, and it’s especially true of Nepali women who are often considered an economic burden in the more misogynistic Nepali society. Perhaps this was the motivation for adoption. Perhaps a married couple’s inability to conceive combined with its focus on supporting Nepali causes (and hailing from a culture with strong familial ties) felt a responsibility to help a distant Nepali relative while fulfilling their desire to parent a child was the motivation for adoption.  The point being it is frivolous to posit your unsubstantiated form of motivation for adoption.

  6. Jaroslaw Waszczuk

    Bill Pursell

    Did you read all three appeal’s  briefs and the  3DCA unpublished opinion/decision. ?  I did . It is  lot of reading and the Respondent’s Brief (Attorney General)   is quite detailed and graphic.    After I red the briefs and the 3DCA court’s opinion I would not leave my daughter with this guy to babysit her  regardless if this guy  is  guilty or not.

    1. David Greenwald

      YOu realize the jurors did not believe her testimony. They convicted him based on the pretext call which the defense believes was misinterpreted and the appellate court didn’t clarify.

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